A certain number of service assignments will, for a variety of reasons, be unserveable. Reasons for this range from the servee successfully avoiding service, to having moved out of the area, to having moved but the new location could not be determined, etc. Whatever the reason there are many clients who need or request a document describing the process server’s efforts to effect service. It is important for a professional process server to know how to prepare a quality document to fill their client’s need. For the purposes of this section we shall refer to all such documents as declarations.
Declarations of this type are known by several names such as Declaration of Attempts; Declaration of Not Found; Declaration of Attempted Service, etc. Whatever the name they all have the same purpose – To report to the client, and possibly to the court, your efforts to accomplish service. Your efforts are facts and your declaration should contain nothing but those facts.
In Brennan vs Hurt the Court of Appeals in Tacoma wrote, “An affidavit in support of service of process by publication must set forth facts, not just conclusions, showing a reasonably diligent search for the defendant within the state.” And in Aiken vs Hicklan the Court of Appeals in Spokane wrote, “Affidavits supporting service by mail must contain specific facts supporting the conclusions.”
The implications for process servers are clear. The courts want the facts and they will draw the conclusions.
Clients often need your declaration to support the efforts to serve the target using alternative means. This might be service by publication, service by mail, service using the Non Resident Motorist Act, and so forth. Statutes usually take into account the possibility that some people cannot be served in the usual manner and therefore make allowances for service in some other fashion.
However, our courts have ruled that if such alternative means is used then they require a strict adherence to statutory and case law. This means your declaration can make the difference between a client successfully using an alternative means of service and their being unable to do so. Needless to say, in the latter case, you are almost certain to hear from a very unhappy client.
There is also an important liability aspect to properly reporting attempted service and, specifically, avoiding the use of conclusions in your declarations. Obviously reporting incorrect (or worse, falsified) information will have an adverse impact on a client’s ability to obtain service by alternative means.
Falsified information will not be considered here because a professional process server will never falsify any aspect of the work which was done.
Incorrect information can happen even when great care is shown in collection and reporting. For instance, a fact can be reported incorrectly due to a typographical error such as a transposition of letters or numbers. The law generally allows for these under the heading of a “scrivener’s error” and they are usually correctable at a later date.
However, someone drawing a conclusion seldom has the benefit of being allowed a second chance to get it right. A conclusion is a finality, an end result, and the courts generally do not allow someone to keep suggesting different conclusions until one is found with which the court agrees. Instead the court understands it is their job, their duty, to draw the conclusions upon which their decisions will be based.
Fact
n. an actual thing or happening, which must be proved at trial by presentation of evidence and which is evaluated by the finder of fact (a jury in a jury trial, or by the judge if he/she sits without a jury).
Conclusion
n. 1) in general, the end. 2) in a trial, when all evidence has been introduced and final arguments made, so nothing more can be presented, even if a lawyer thinks of something new or forgotten. 3) in a trial or court hearing, a final determination of the facts by the trier of fact (jury or judge) and/or a judge’s decision on the law.
The following facts should be in your Declaration of Attempts and should be correlated with each attempt:
- The date, time, and location of each attempt.
- The basic and relevant content of any conversations.
- Vehicle license numbers.
- Relevant observations made concerning the premises.
The following should not be in your Declaration of Attempts:
- Your conclusions.
- Your personal interpretation of another’s statements.
- Any information not specifically relevant to your attempts to serve the target. For example, the contents of a telephone call with your client where you are instructed to cease attempts and return the documents unserved.
- Phrases such as “Due and diligent.” These are conclusory.
- Slang or profanity except where used in a quotation.
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This is a rough diagram of a typical courtroom in the state of Washington. Courtrooms vary a great deal from city to city and county to county but they all have the same basic structure.
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